Supreme Court of Canada issues reasons for judgment in Heller v. Uber

On June 26, 2020, the Supreme Court of Canada issued reasons for judgment in Heller v. Uber, an important case about the ability of employers in the “gig economy” to compel their employees to pursue their rights by way of expensive arbitration proceedings.  More particularly, the case concerned the doctrine of unconscionability which, in simple terms, allows a court to refuse to enforce a contract, or provisions of a contract, that are grossly unfair.

Wes McMillan and Greg Allen represented the Community Legal Assistance Society as an intervenor in the case and argued that the doctrine of unconscionability should be broadly understood and focus on the impact of the contract on the weaker party, rather than on whether the stronger party has intentionally taken advantage of the weaker party.

The majority of the Court held that Uber’s contract – which required Uber drivers to bring any complaints by way of arbitration pursuant to the law of The Netherlands, and incur fees of $14,500 just to commence the arbitration – unconscionable.

Of more general importance, the majority provided needed clarity as to how and when the doctrine of unconscionability is to be applied.  As the doctrine of unconscionability can apply to any form of contract, the Court’s decision will be of enduring interest.

A contract will be deemed unconscionable if there is an inequality of bargaining power and an improvident bargain.  The majority rejected the application of a rigid test in favour of a highly contextual analysis to be applied on a case-by-case basis.

Importantly, the majority of the Court recognized that the doctrine of freedom of contract is not sacrosanct and that where the principles underlying it are not present, it will be of less force.  This has particular application to standard form contracts of adhesion which are a practical necessity for participation in modern society. 

Allen / McMillan is pleased to have been able to represent the Community Legal Assistance Society in this important case that not only affects the rights and interests of Uber drivers, but of all Canadians.

Real Estate Litigation and COVID-19 – CLEBC Webinar

AMLC’s Wes McMillan will be presenting at the CLE Webinar: Real Estate Litigation and COVID-19 on Monday, June 15, 2020 from 9:30-10:30am. For more details and to register click here.

Allen / McMillan argues at first Supreme Court of Canada hearing conducted by Zoom

On June 9, 2020, AMLC’s Wes McMillan appeared, via Zoom, in the Supreme Court of Canada to make submissions on behalf of the Condominium Home Owners’ Association of BC (“CHOA”) in the case Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation.

This was the first time a Supreme Court of Canada hearing took place entirely by videoconference.

The case raises important issues concerning a strata corporation’s obligation to pay for property rights granted to it by way of easements and other charges registered at the Land Title Office.  It also addresses concerns that developers, through self-interested contracts, may burden strata corporations with significant financial obligations without the strata corporation ever formally agreeing to them.

CHOA argued that the common law concerning pre-incorporation contracts does not apply to strata corporations because the concern that pre-incorporation contract law was developed to address does not exist in the strata context.

Furthermore, CHOA argued that a strata corporation ought not to be required to pay for property rights granted to it by way of registered charges that pre-date the creation of the strata corporation.

AMLC is proud to represent non-profit organizations like CHOA to ensure its members and the persons it represents have a voice in our legal system.

CLE session with Greg Allen - Pre-Judgement Remedies

Greg J. Allen will talk about Pre-Judgement Remedies on June 03, 2020, at 2:00 pm. Admission is a donation to Mission Possible (suggested donation: $25 - https://donate-ca.keela.co/mission-possible/default-donation-form-34). The presentation will be CPD-eligible, pending approval from the Law Society.  An update will be provided once it is confirmed. To RSVP, please send an email to info@amlc.ca with the subject line “RSVP to CLE - Your Full Name “.

Robin Bennett wins two petitions against the City of Richmond

On March 30, 2020, the BC Supreme Court released twin decisions in Minster Enterprises Ltd. v. City of Richmond and Yu v. City of Richmond.

Robin Bennett of Allen / McMillan Litigation Counsel acted for the petitioners in both proceedings. The issue before the court was whether the City was reasonable to conclude that the petitioners’ building permits had expired due to “construction”, as defined in the City’s Building Regulation Bylaw, not commencing within 6 months of the permits being issued. However, in both cases, the properties had been preloaded at the relevant time, a process in which a large quantity of sand is deposited in order to compress the underlying ground in advance of building. Once the ground is sufficiently compacted – which typically takes months or even years – the preload is removed and construction proceeds. Finding that the bylaw’s definition of “construction” was broad enough to include preloading, the Court set aside the City’s decision and reinstated the petitioners’ building permits.

The City of Richmond is appealing both decisions.

Liam Babbitt wins 3-day trial

On February 6, 2020 the British Columbia Provincial Court released their decision in Immiglobe Canadian Immigration Corp. v. Kashef. In the trial, the claimant sought damages for unpaid amounts under an immigration consultancy contract.  The defendant counterclaimed, seeking return of funds she had previously paid under the same contract.  Liam Babbitt represented the claimant, and ran the trial just two short weeks after his call to the bar.  Liam’s client was successful in both the claim and counterclaim.  This was due in large part to Liam’s cross-examination skills, as the trial judge concluded that she could “give little weight to [the defendants’] testimony” as a result of credibility concerns. 

Allen / McMillan congratulates Liam on his trial victory and notes that, at this pace, Liam will reach 100 trial victories in his ninth year of call.